[19 S. D Opinion of the Court-CORSON, P. J. does not allege that prior to the commencement of the action the plaintiff rescinded the contract with Taylor for the exchange of properties, and therefore does not state à cause of action. (2) There is no finding of fact that prior to the commencement of this action the plaintiff rescinded the contract with Taylor for the exchange of properties. Therefore the first and second conclusions of law are not justified or warranted by the findings of fact." In support of these propositions, appellants contend that, under sections 1282-1285 of the Civil Code of this state, a contract for the sale of property must be rescinded before an action can be maintained in court for the restoration of the property claimed by the plaintiffs; and the appellants cite a number of California authorities which they claim support the propositions made, but, in our view, they do not sustain the appellants' contention, in actions involving real property, requiring the cancellation of conveyances, and which requires the interposition of a court of equity. After an exhaustive review of the California decisions by the Supreme Court of California, that court, in Kelley v. Owens, 120 Cal. 502, 47 Pac. 369, 52 Pac. 797, says: "There are exceptional cases where restoration, or an offer to restore, before suit brought, is not necessary, where, without any fault of plaintiff, there have been peculiar complications, which make it impossible for plaintiff to offer full restoration, although the circumstances are such that a court of chancery may by a final decree fully adjust the equities between the par ties; and it will be found that such instances, or others similar to them in principle, are those to which the authorities cited by appellants generally relate. The substance of the distinction will be found to be based, not upon the form of the action, * * * Jan., 1905] Opinion of the Court-CORSON, P. J. but upon the difference between the cases which are within the rule, and those which, owing to peculiar facts, are exceptions to the rule. * * * Sections 3406-3408 of the Civil Code do not establish any new rule upon the subject." The sections referred to by that learned court are identical with the sections of the Code of this state upon the subject of rescission of contracts, and the sections in the Code of that state as well as of this state were copied from the proposed Civil Code of New York, constituting sections 838 to 841, inclusive, of that Code. In the note to these sections the commissioners preparing that Code, after citing a number of common-law cases, say: "This is undoubtedly a common law rule. But the rule in equity does not appear to have been so strict. An equitable action for rescission is governed by rules stated in the fourth division of this Code." The commissioners seem to recognize the jurisdiction of courts of equity to rescind contracts in proper cases, and the distinction between the rescission of a contract at com. mon law and an action to rescind a contract in equity. The provisions of the Code were not intended to establish a new rule. They simply embodied the principles of the common law as they then existed, and left the rescission of contracts and the cancellation of deeds to courts of equity when the case is such as to require the exercise of their jurisdiction. One of the leading heads of equity jurisprudence is the rescission of contracts, and the cancellation of deeds and other instruments. In Pomeroy's Equity Jurisprudence, in section 112, the learned author specifies as his sixth division of remedies peculiar to courts of equity: "Remedies of rescission or cancellation or those by which an instrument, contract, deed, judgment, and even sometimes a legal relation itself subsisting Opinion of the Court-CORSON, P. J. [19 S. D. between two parties, is for some cause set aside, avoided, re. scinded, or annulled. This remedy, like the preceding, is sometimes conferred as the sole and final relief needed by the plaintiff, but is often the preliminary step to a more effective remedy by which his primary right is declared or restored." In Mut. Life Ins. Co. v. Pearson, 114 Fed. 395, the United States Circuit Court for the District of Massachusetts, in speaking upon this subject, says: "The inherent power of a court of equity to set aside a contract obtained by fraud is ancient, familiar, and elementary; and the only serious questión raised by the demurrer is whether, upon the state of facts set forth in the bill, the complainant has an adequate and complete remedy at law." The Court of Appeals of the state of New York, in discussing this question in Gould v. Bank, 86 N. Y. 75, after discussing the general principles of a rescission of contracts as laid down in our Code, says: "But the defrauded party need not rescind, and sue in an action at law for the consideration parted with upon the fraudulent contract. He may bring an action in equity to rescind the contract, and in that action may have full relief. Such an action does not proceed as upon a rescission, but proceeds for a rescission. In such a case it is sufficient for the plaintiff to offer in his complaint to restore to the defendant what he has received, and the rights of the parties can be fully regulated and protected in the judgment to be entered. Such was the case of Allerton v. Allerton, 50 N. Y. 670. If this had been an action in equity to rescind the contract, the court could have done equity between the parties, and so molded its judgment as to accomplish that result. It could if needful, have brought into the litigation matters pertaining to the trust created by Starin for plaintiff's benefit, Jan., 1905] Opinion of the Court-CORSON, P. J. A and, to that end, could have ordered that Starin and the trustee be made parties. This action was brought as an action at law; no mention being made in the complaint of the compromise agreement, or of the $25,000 paid to the plaintiff. purely legal defense was set up. It was tried as an action at law, and no motion was made to convert it into an equity action. It is idle to say that the distinction between legal and equitable actions has been wiped out by the modern practice. It is true that all actions must be commenced in the same way, that in every form of action the facts constituting the cause of action must be truly stated, that fictions in pleadings have been abolished, and that both kinds of actions are triable in the same courts. But the distinction between legal and equitable actions is as fundamental as that between actions ex contractu and ex delicto, and no legislative fiat can wipe it Reubens v. Joel, 13 N. Y. 488; Goulet v. Asseler, 22 N. Y. 225. At any rate, the difference between an action to rescind a contract and one brought, not to rescind it, but based upon the theory that it has already been rescinded, is as broad as a gulf. They depend upon different principles, and require different judgments. Here the tender of money into court at the close of the trial would have been sufficient, if this had been an equitable action for a rescission, and relief consequent thereon." It will be observed in that case that the court, notwithstanding it recognized the general rule applicable to the rescission of contracts at common law, still recognized a distinction between rescission of a contract and "an action in equity to rescind" a contract, and in the latter action to secure full relief. The law laid down by the learned Court of Appeals of New York was approved by this court in Johnson v. Burn Opinion of the Court-CORSON, P. J. [19 S. D.. side, 3 S. D. 230, 52 N. W. 1057, and seems to be sustained by the great weight of authority. Allerton v. Allerton, supra; Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301; Thayer v. Knote, 59 Kan. 181, 52 Pac. 433; Jandorf v. Patterson, 90 Mich. 40, 51 N. W. 352; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; Nelson v. Carlson, 54 Minn. 90, 55 N. W. 821. If the Supreme Court of California has by its decisions established a contrary rule, which we question, we must decline to follow its decisions upon this subject, and adhere to the rule as established by the Court of Appeals of New York, approved by our own court in the case above cited, which recognizes the distinction existing between a rescission under the Code, and an action in equity to rescind. In the case at bar the plaintiffs, in their complaint, offer to restore to the defendants everything required by them under the contract; and the court finds that they have brought and tendered into court before the trial of the action a good and sufficient deed to convey said hotel property to said Hardy, subject to the mortgage against the same. We are of the opin ion that the offer of the plaintiffs, in their complaint, with the presentation of a duly executed deed to the court, constitutes a full compliance with the rule as applied to actions in equity for the purpose of rescinding a contract. It is further contended by appellants that the evidence was insufficient to justify the findings of the court, but, in our opinion, this contention is untenable. As before stated, the case was tried to the court, and certain special issues were submitted to a jury, which found in favor of the plaintiffs on all the issues; and the special verdicts were, in effect, adopted by the court, and made a part of its own findings in the case. The |